Canadian Supreme Court – new responsible communication defence

As regular readers will know, from time to time, we like to review cases from other Supreme Courts around the world.

Shortly before the Christmas break the Canadian Supreme Court handed down two important decisions in Grant v Torstarand Quan v Cusson of particular interest to us – which established under Canadian law the defence of responsible communication to an action in defamation. The decisions made signficant reference to decisions from the UK courts but also provides an interesting reflection on the issues arising under the law – from a judicial body at the highest level – ten years after the House of Lords handed down the seminal decision in Reynolds v Times Newspapers.

Grant, to English eyes, accustomed to the Reynolds defence, appeared to be a strong case for a defence of responsible journalism to apply. It related to allegations in the Toronto Star regarding supposed political connections to Mr Grant, a property developer, in respect of a potential golf course. The allegations were serious and sensibly reported and the journalist repeatedly sought Mr Grant’s side of the story, but this was refused.

However, although some junior courts had given the nod to the existence of such a defence in Canadian law, its standing had never been established by the Supreme Court. Mr Grant contended that the defence did not exist.

In the leading judgment, McLachlin CJ, considered the principled argument in favour of such a defence, noting that a libel regime where the only likely substantive defence for a media organisation to a libel claim was that of justification was likely to have a chilling effect on freedom of expression, which was guaranteed by the Canadian Charter of Rights. She stated:

“While the law must protect reputation, the level of protection currently accorded by the law — in effect a regime of strict liability — is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true… When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”

McLachlin CJ then reviewed the authorities from various common law jurisdictions around the world, including – at some length – the decision in Reynolds. She rejected the approach of the US Supreme Court in New York Times Co. v. Sullivan which required a plaintiff to show actual malice on the part of the publisher to succeed in a defamation case concerning of public figure. Instead, she adopted the approach broadly extant in Australia, New Zealand, South Africa as well as the UK, that the reporting had to be responsible.

Characterising the defence as one of “responsible communication” (she recognised that in the Internet age, responsible reporting may be too restrictive), she identified a two statge test. First was the communication in the public interest. Second, if so, was it responsible. In this regard was to be had to factors such as:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff’s side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable; and

(g)whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth.

In Quan, the reasoning in Grant was adopted. In both cases, the matters were referred back to courts at first instance for determination of whether the defence of responsible communicaiton – on their respective facts – applied.

These important decisions bring Canada very much into line with the United Kingdom and other common law jurisdictions. It also provides some interest forward thinking about the structure of this defence which may be of relevance to future defamation cases over here.